The “First Strike” in Child Custody Battles I

In Surya Vadanan v. State of Tamil Nadu, [Criminal Appeal No. 395 of 2015] the custody of two minor girls, both British citizens, was in question. Following intense matrimonial discords, the mother had left U.K. and had come to India with her two daughters. She also instituted a proceeding in the Family Court at Coimbatore seeking dissolution of marriage. The husband, finding the wife to be unrelenting and disinclined to return to U.K. with her daughters, petitioned the High Court of Justice in U.K. for making the children as the wards of the Court, which passed an order granting the prayer and required the mother to return the children to its jurisdiction. This order was passed even before any formal order could be passed on the petition filed by the wife seeking divorce. This order was followed by another order of the U.K. Court giving peremptory direction to the wife to produce the two daughters before the U.K. Court and was supplemented by a penal notice to her. It was thereafter that the husband moved the Madras High Court for a Writ of Habeas Corpus on the ground that the wife had illegal custody of the two daughters. On the following considerations as extracted, relief as prayed for by the husband was granted:

In passing an interim or an interlocutory order, a Foreign Court is as capable of making a prima facie fair adjudication as any Domestic Court and there is no reason to undermine its competence or capability. If the principle of Comity of Courts is accepted, and it has been so accepted by this Court, we must give due respect even to such orders passed by a Foreign Court… 

If an interim or an interlocutory order passed by a Foreign Court has to be disregarded, there must be some special reason for doing so. No doubt we expect Foreign Courts to respect the orders passed by Courts in India and so there is no justifiable reason why Domestic Courts should not reciprocate and respect orders passed by Foreign Courts…

What are the situations in which an interim or an interlocutory order of a Foreign Court may be ignored? There are very few such situations. It is of primary importance to determine, prima facie, that the Foreign Court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the Foreign Court exercises jurisdiction. If the Foreign Court does have jurisdiction, the interim or interlocutory order of the Foreign Court should be given due weight and respect. If the jurisdiction of the Foreign Court is not in doubt, the “first strike” principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another Court (Foreign or Domestic)…

If there is a pre-existing order of a Foreign Court of competent jurisdiction and the Domestic Court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the Domestic Court must take into consideration:

  • The nature and effect of the interim or interlocutory order passed by the Foreign Court.
  • The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the Foreign Court.
  • Whether the repatriation of the child causes any moral or physical or social or cultural or psychological harm to the child, or causes any legal harm to the parent with whom the child is in India. There are instances where the order of the Foreign Court may result in the arrest of the parent on his or her return to the foreign country. In such cases, the Domestic Court is also obliged to ensure the physical safety of the parent.
  • The alacrity with which the parent moves the Foreign Court concerned or the Domestic Court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the Domestic Court may be well advised to conduct an elaborate inquiry.